STATEMENT OF FACTS.
This is an action of ejectment by Scott Gaylord and Lillie B. Urguhart against W. C. Robinson to recover possession of a tract of land 110 yards wide and extending across the entire north side of a forty-acre tract of land, and for damages in the sum of $750 for cutting and removing the merchantable timber from said land. The suit was defended on the ground that the land belonged to the defendant.
The following stipulation was entered into between the parties:
"It is agreed by and between attorneys for plaintiff; Scott Gaylord, and the defendant W. C. Robinson, as follows:
"`That the plaintiff, Scott Gaylord, is the owner of the northwest quarter of the northeast quarter of *Page 850 Section 20, township 13, range 17 west, Ouachita County, Arkansas, and is entitled to the immediate possession thereof.
"`That the defendant W. C. Robinson, is the owner of the southwest quarter of the southeast quarter of section 17, township 13, range 17 west, Ouachita County, Arkansas, and is entitled to the immediate possession thereof'."
According to the testimony of Scott Gaylord he received a deed to the 40 acres of land claimed by him in shout 1889. Witness is seventy-one years old. Witness worked the land for his uncle fifty-eight years ago. Alex Toney then owned the forty acres of land immediately north of the forty now owned by the witness. There was a fence between the two forty-acre tracts of land and also a corner rock between them. Witness left the country and stayed away fifteen or twenty years. When he returned, the old fence was still there, but it was not a complete fence like it was before he left, the corner rock was a reddish clay rock, square on the top, and was just even with the top of, the ground. There was never any difficulty about where the boundary line was, but the owners of the respective tracts of land recognized that the fence row was the boundary line, and each owner cultivated up to the fence row.
Kit Scott, fifty-three years of age, testified that he had knob the land all of his life, and that the old fence row had been recognized as the boundary line ever since he could recollect.
Lillie B. Urguhart is sixty-eight years old; and when she could first remember the land, it was owned by one of the Toneys. She is the granddaughter of the original owner of the land, and the old fence row on the line north of the forty claimed by the witness and her brother, Scott Gaylord, was recognized as the division line. She recollected that the fence was there about fifty years ago. It was called the old fence row and was recognized as the division line between the two forty-acre tracts of land. *Page 851
According to the testimony of Hugh Toney, he is sixty-five years old and is the son of Alexander Toney who has been dead about twenty years. His father owned the north forty-acre tract of land now claimed by Robinson, and owned it for about fifty years. There was an old fence row between the two forty-acre tracts of land; and when the father of the witness owned the north forty-acre tract, the old fence row was supposed to be the division line between them. There was no particular agreement between his father and Captain Scott who owned the south forty about what was the boundary line between the two fortys, but it was considered by them that the old fence row was the boundary. Each of them cultivated up to the old fence row.
According to the testimony of W. C. Robinson, the forty acres of land now claimed by him was conveyed to him in 1919 by a deed from W. J. Rogers. Rogers told him that the dividing line between the two forty-acre tracts was outside of and south of the old fence. He said it was something like 100 yards south of the fence row. Afterwards a surveyor was employed to run the dividing line; and according to his survey, the division line between the two forty-acre tracts was about 100 yards south of the old fence row.
According to the testimony of W. J. Rogers, when he purchased the land from Toney, he was told that the old fence row was the division line, and when he sold the land to Robinson, he told Robinson that the old fence row had been considered the division line between the two forty-acre tracts for many years.
Other evidence tended to show that Rogers told Robinson that the division line was about 75 yards or more south of the old fence row.
The strip of land south of the old fence row now in dispute was permitted to grow up in trees; and Robinson, after he caused a survey to be made which located the division line 100 yards south of the old fence row, cut and removed timber from the disputed strip of land of the estimated value of $240 or more. *Page 852
The jury found for the plaintiffs for the land in controversy and assessed their damages in the sum of $240. Judgment was rendered on the verdict, and the defendant has appealed. (after stating the facts). This court has held in accord with the weight of authority that where there is doubt or uncertainty or a dispute has arisen as to the true location of a boundary line, the owners of the adjoining lands may, by parol agreement, fix a line that will be binding upon them, although their possession under such agreement may not continue for the full statutory period. Sherman v. King, 71 Ark. 248, 72 S.W. 571; Cox v. Daugherty, 75 Ark. 395, 36 S.W. 184, 112 Am. St. Rep. 75; Deidrich v. Simmons, 75 Ark. 400,87 S.W. 649; Payne v. McBride, 96 Ark. 168, 131 S.W. 463; O'Neal v. Ross, 100 Ark. 555, 140 S.W. 743; Butler v. Hines,101 Ark. 409, 42 S.W. 509; Malone v. Mobbs, 102 Ark. 542,145 S.W. 193; 146 S.W. 143; and Sherrin v. Coffman,143 Ark. 8, 219 S.W. 348.
In a case-note to 8 Ann. Cas. page 83, it is said that this holding is in accord with the decided weight of authority in this country. Among the cases cited is that of Boyd v. Graves, 4 Wheat (U.S.) 513. In that case the Supreme Court of the United States said that such agreement is "not a contract for the sale or conveyance of lands, and has no ingredients of such a contract."
The theory of these cases is that where owners of adjoining tracts of land adjust their division line by parol agreement or by long acquiescence, they do not convey any estate whatever between themselves, and that the agreement does not operate upon the title at all. The reason is that after their boundary line is fixed by consent, they hold up to it by virtue of the title deeds and not by virtue of a parol transfer. In such cases, the agreement or consent serves to fix the line to which the title of each extends. *Page 853
In Cutler v. Callison, 72 Ill. 113, the rule itself and the reason for it is clearly stated as follows:
"While it may be regarded as well settled that the title to real estate cannot be transferred by parol, yet it is a principle well established that the owners of adjoining tracts of land may, by parol agreement, settle and establish permanently a boundary line between their lands, which, when followed by possession according to the line so agreed upon, is binding and conclusive, not only upon them, but their grantees."
In the case at bar, counsel for appellant first earnestly insist that there is no testimony upon which to predicate an application of the rule of law above announced. They claim that there was no doubt, uncertainty, or dispute as to the boundary line between the two forty-acre tracts, and no proof tending to show that the parties agreed upon such division line. We cannot agree with counsel in this contention. The witnesses for the plaintiffs testified that fifty-eight years before the present controversy arose a stone marked the corner between the two forty acres of land, and that an old division fence was extended across the forty, and that this division line was recognized as the boundary between the owners of the adjoining forty acres of land. The land at that time was in cultivation on each side of the division fence, and the owners of the two tracts of land cultivated up to the division line. The old division fence was recognized as the boundary line between the two forty-acre tracts for many years.
Under this state of proof, the jury might have found that the long acquiescence in the division fence as a boundary line constituted a parol agreement to that effect and warranted the court in submitting this question to the jury. The evidence in reference to the division fence as the agreed line and the possession of the parties up to it was submitted to the jury under instructions according to the principles of law above announced, and no useful purpose could be served by setting out the instructions in detail and reviewing them at length. *Page 854
The court also submitted to the jury the question whether or not the defendant had acquired title to the disputed strip of land by adverse possession. The evidence adduced in favor of the plaintiffs warranted the jury in finding that there had been such long acquiescence in the old fence row as the division line between the two forty-acre tracts of land by the owners of the respective tracts that it amounted to a parol agreement that the old fence row was the division line, and that the defendant had not acquired title by adverse possession.
It is true that the disputed strip of land was afterwards permitted to grow up in trees, but for a long period of time it was cultivated and claimed by the owner of the south forty, and the old fence row was acquiesced in by the owners of both tracts as the division line for many years. This warranted the jury in finding that there was a parol agreement to that effect; and this agreement under the authorities above cited, was just as binding upon the defendant Robinson as it was on his grantors.
We find no reversible error in the record, and the judgment will therefore be affirmed.